Earlier this year, the Patriot, a group of respected elder statesmen in Nigeria organised a colloquium in honour of eminent constitutional lawyer, Prof. Ben Nwabueze, who passed on few months ago. On that occasion they made an express call for a new federal constitution for Nigeria. They renewed that call on a visit to President Bola Tinubu few days ago. There are those who erroneously believe that a new constitution is not what Nigeria needs at this point in her history. How wrong they are! The reality is that the governance and fiscal arrangements entrenched in the 1999 constitution are indeed at the very heart of the dysfunctional economy, as well as the corrupt and ineffective leadership currently plaguing the country. To divorce constitutionalism from governance is to advertently or inadvertently foist on a country a recipe for disaster. A country that is genuinely desirous of growth must first pay special attention to its constitutional architecture. If the architectural design of a building is terribly faulty, the inhabitants risk constant discomfort or annihilation.
It is an open secret that the extant 1999 constitution of Nigeria is an illegitimate governance framework that was imposed on the entire country by military adventurers on the eve of their departure from power in 1999. Indeed, the text of the constitution was an annexure to Decree 24 of that year. Contrary to what is contained in its preamble therefore, this constitution was not democratically made by the Nigerian people. It is not, and can never be a peoples’ constitution, properly so-called. Rather it was unilaterally conceived and hurriedly forced down the throat of Nigerians by the military and their handpicked coterie of civilian collaborators. The constitution entrenches a highly centralised division of powers and concentrates authority in the central government. Under the power sharing architecture set out in the constitution, the subnational governments (the States) are, in fact, no more than mere appendages of the central government. Thus, although the framers of the 1999 constitution would have us believe that this is a federal constitution, the allocation of powers outlined in that constitution represents the very antithesis of federalism.
In Alfred Stepan’s famous typology of federal systems, federations can be either “coming-together” or “holding-together.” Coming together federations are those formed by the amalgamation or merger of two or more distinct political entities, each with its own previously fashioned governance arrangements, as well as its own distinct culture and traditional paraphernalia. Under such federal arrangements, the federating entities are regarded as partners, and power is shared among them in a way that imbues each federating entity with significant autonomy in matters entirely internal to it. On the other hand, holding-together federations are those formed from previously centralised States. Under this arrangement, the central government devolves a measure of authority over certain matters to sub-national governments. But the central government looms large in such federations wielding the most significant powers and exercising unmatched control over the entire country. In essence, in this type of federation, the central government retains its hold over the most significant powers of State while conceding a few, sometimes insignificant, powers to the sub-national governments.
Nigeria is not originally a “holding-together” federation. It is a “coming-together” federation that has been treated like a holding-together federation for several years due to its experience with colonialism and its long but unfortunate history of military rule. The Nigerian federation was formed from the forceful “coming-together” of several nations, kingdoms, and empires, each of which already had its own well developed social system and had attained a significant level of political sophistication by the time of the (in)famous amalgamation of northern and southern Nigeria by the British in 1914. The Supreme Court of Nigeria acknowledged this point in AG of the Federation v. AG of Abia State and 35 Ors, [2002] Vol.16 WRN 1-132 at p.68. It was the colonialists who forcefully welded these separate entities together and foisted a centralist governance structure on the country. The territorial area now called Nigeria was thus ruled as a centralised State throughout the colonial era. The colonising British authorities did this without any regard for the distinctness, uniqueness, and diversity of the peoples over whom they governed. However, shortly before the attainment of independence in 1960, the leading indigenous Politicians in Nigeria and the outgoing colonial authorities, who had by now realised the mistake of the 1914 amalgamation, thought that the nature of the Nigerian federation required a constitution which had in it a power allocation structure that concedes significant autonomy to the regional governments and imbues them with unfettered authority over matters that were entirely internal to them. Thus, the 1960 and 1963 constitutions were fashioned to reflect this thinking. Both constitutions assigned significant self-governing powers to the regional governments. Nigeria’s current problem started with the military coup of 1966. Decree 34 (unification decree) of that year abolished federalism and replaced it with a unitary-type system. Although this action was later reversed following the countercoup of July 1966, the so-called federal system that was subsequently introduced by the military made a caricature of federalism, centralizing virtually all relevant powers of governance and turning the regional (state) governments to mere administrative units of the central government. Nigeria has, to put it succinctly, remained that way since then.
What then is the way forward? The situation requires a complete abrogation of the 1999 constitution, and its replacement with a federal constitutional framework that entrenches a counter-hegemonic power-sharing arrangement- one that concedes significant self-governing powers to the constituent units of the federation. Certainly, this will, among other things, also necessitate a re-organisation of the current 36-state federal structure. This structure is unsustainable and unviable as many of the existing states are structurally and fiscally weak. Nigeria should adopt a zonal or provincial system and restructure the federation into six zones or provinces with each zone having many local governments.
The process of democratically making a new constitution is usually long and capital intensive. However, the current reality is that Nigeria does not have the luxury of time nor the required capital to implement a proper democratic constitution-making process. The country is experiencing serious economic crisis, and care must be taken not to embark on a needlessly extravagant venture at this point. The only alternative left, it appears, is to fashion out a constitution making process that is relatively less expensive but carefully programmed to ensure that the new constitution reflects the will of the people. With this said, I have summarized below a plan of action that would ensure that Nigeria is able to produce such a constitution:
(i) The Attorney General’s office should prepare and send to the existing National Assembly (Parliament), a draft Constitution Making Process bill to provide legal backing for the constitution making process. When passed by the National Assembly, the bill should be sent to the President for his assent and promulgation into an Act.
(ii) The federal government should set up a small Constitution Drafting Committee (CDC) consisting of 12 constitutional lawyers and experts from the six geo-political zones of the country. Two people should be selected from each zone. The appointment of the members of this committee should be based entirely on merit, not party affiliation or other political considerations.
(iii) Members of the CDC should be tasked with pulling together and harmonising the reports of the various constitution reviews and constitution-making exercises carried out in the past. In particular, the comprehensive report of the 2014 National Conference, as well as the texts of the 1960 and 1963 constitutions should be used as reference materials to draft a new constitution for Nigeria. This is because under the 1960 and 1963 constitutions, Nigeria practiced federalism in the true sense of the word. Under both constitutions, Nigeria also experienced enormous and unprecedented economic growth. Also, the 2014 National Political Reform Conference was well attended by delegates from all over Nigeria. Trade unions, and other civil society groups were also fully represented. The debates and Discussions during the conference were thorough and well thought out. It stands to reason that the report and recommendations of that conference ought to be a standard reference material for any future constitution making project.
(iv) The Constitution-drafting Committee should, within a period of 3 months, submit a draft constitution to the office of the Attorney General of the Federation.
(v) The federal government, in conjunction with the existing state governments should empanel a Constituent Assembly consisting of 6 representatives from each of the six zones of the federation. The Constituent Assembly should also have six persons representing the Federal Government.
(vi) The Attorney General of the Federation should present the draft Constitution prepared by the Constitution Drafting Committee to the Constituent Assembly for a thorough review which must be done within three months.
(vii) Following its deliberations, the Constituent Assembly shall adopt the final draft of the Constitution. The Constituent Assembly should submit the draft constitution finally adopted by it to the Attorney General of the federation who shall then forward it to the existing National Parliament (i.e National Assembly)
(viii) The National Assembly shall consider and approve the new constitution in accordance with the Constitution Making Act earlier passed by it. A draft of the new Constitution should then be annexed to the Act and forwarded to the President of Nigeria for his assent and signature.
(ix) Upon the President’s formal assent, the annexed constitution shall become the new Constitution of Nigeria.
With the right political will, the simple and relatively less expensive procedure outlined above should not be difficult to implement. The President of the country must set the ball rolling by boldly taking steps in this direction. All other government and political leaders, as well as Nigerians themselves must also commit themselves to this process. This is the only way to achieve the desired result.
Some may wonder whether instead of the procedure outlined above, the National Assembly should not simply be asked to take charge of the constitution-making process and implement it? The simple answer is that the legislators were not elected to make a new constitution for Nigeria. They lack that power. The power to make a new constitution belongs to the constituent power, not the constituted power. The constituent power is the people of Nigeria. The legislators and other elected office holders are jointly referred to as the constituted power. The constituted power can only make a new constitution if it has been expressly mandated to do so by the constituent power- the people. Nothing in the extant 1999 constitution, faulty and problematic as it is, mandates the National Assembly to make a new Constitution for Nigeria. It is true that section 9 of the Constitution empowers the legislators to amend sections ⁶ the Constitution if there is a need to do so. However, amending an existing constitution is not the same as writing a new Constitution. What Nigeria needs at this point is not amendments to the extant constitutional framework but an entirely new constitution. Members of Parliament (the National Assembly) can only embark on the process of framing a new constitution with the express mandate of the people. Currently, the Nigerian legislature has no such mandate.
Dr. Kunuji is the Executive Director of the Lex Lata Centre for International Law and Comparative Constitutionalism in Africa.
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